Warringah Shire Council v Koala-Ty Pizza Pty Ltd [1988] NSWLEC 5

Land and Environment Court of New South Wales

CITATION : Warringah Shire Council v Koala-Ty Pizza Pty Ltd [1988] NSWLEC 5 APPLICANT Warringah Shire Council PARTIES : RESPONDENT Koala-Ty Pizza Pty Ltd

FILE NUMBER(S) : 40185 of 1987 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1919 Baulkham Hills Shire Council v. Iaria (1977) ; CASES CITED: Miah v. The Secretary of State for the Environment (1986); Fens Ltd. v. Rutland County Council (1950) DATES OF HEARING: DATE OF JUDGMENT: 06/21/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: In these class 4 proceedings the Applicant seeks a declaration and injunction to enforce compliance with a condition of development consent granted by the Applicant on 12th March, 1985 to the use of a shop within a small neighbourhood shopping centre situate at the corner of Pound Avenue and Yindella Street, Davidson "for the purpose of a take-away pizza shop".

The relevant condition of consent is as follows:-

"9. Operating hours being confined to Sunday to Thursday 11.30pm.: Friday and Saturday 12.30am".

The dispute between the parties in relation to the attempted enforcement of this condition of development consent concerns exclusively the parties' different interpretations of the condition. The Applicant contends that it imposes a curfew on all operations conducted in the shop premises (including cleaning up after the shop has closed for trade) whereas the Respondent contends that it imposes a curfew on the evening trading hours.